Amended in Assembly June 11, 2013

Amended in Senate April 15, 2013

Senate BillNo. 496


Introduced by Senator Wright

February 21, 2013


An act to amendbegin delete Sectionend deletebegin insert Sections 905 andend insert 19683 ofbegin delete the Government Code, relating to whistleblower protection. end deletebegin insert, and to add Section 8547.15 to, the Government Code, and to amend Section 1102.5 of the Labor Code, relating to employment.end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 496, as amended, Wright. California Whistleblower Protection Act: administrative procedure.

Existing law, the California Whistleblower Protection Act, provides that a person making a protected disclosure, as defined, about an improper governmental activity is to be free of intimidation or threat and that a person who intentionally engages in acts of reprisal, retaliation, coercion, or similar acts against a state employee or an applicant for state employment for having made a protected disclosure is subject to civil liability and criminal penalties. Existing law also provides that civil damages are available to an injured party only if the State Personnel Board has issued, or failed to issue, findings pursuant to specified procedures. Existing law requires the State Personnel Board to initiate a hearing or investigation of a complaint of reprisal or retaliation in violation of the California Whistleblower Protection Act within 10 working days. Existing law also requires the executive officer of the board to complete findings of the hearing or investigation within 60 working days, but if the allegations contained in the complaint of reprisal or retaliation are the same or similar to those contained in another appeal, the executive officer may consolidate the appeals, in which case the time limits do not apply.

This bill would instead requirebegin delete a preliminaryend deletebegin insert an informalend insert hearing or investigation to occur within 10 days of submission of a complaint, followed by an evidentiary hearing, as specified. The bill would provide that after an evidentiary hearing, an aggrieved party to the decision may file a petition for writ of mandate for review of the decision, as specified. The bill would further providebegin delete that,end deletebegin insert thatend insert the complainant is deemed to have exhausted his or her administrative remedies and may file an action for civil damagesbegin insert afterend insert 70 daysbegin delete afterend deletebegin insert fromend insert submitting the complaint to the board or sooner if the executive officer issues findings or refers a consolidated appeal to an evidentiary hearing, as specified. The bill would provide that the executive officer’s findings of thebegin delete preliminaryend deletebegin insert informalend insert hearing or investigation are not binding in a subsequent State Personnel Board evidentiary hearing or in a civil action for damages. The bill would specify that the filing of a civil action by a complainant does not preclude the request for an evidentiary hearing by a supervisor, manager, employee, or appointing power whom the executive office has found to have retaliated against the complainant nor does the request for an evidentiary hearing preclude the complainant’s right to file an independent civil action, as specified. The bill would also make other technical changes.

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The act further authorizes the State Auditor to investigate and report whether it finds that a state agency or employee may have engaged or participated in an improper governmental activity. Under the act, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or applicant for state employment for having made a disclosure that may evidence an improper governmental activity or dangerous condition is subject to, among other things, liability in an action for damages brought against him or her by the injured party. Existing law, the Government Claims Act, sets forth the general procedure for the presentation of claims as a prerequisite to commencement of actions for money or damages against the State of California, counties, cities, cities and counties, districts, local authorities, and other political subdivisions of the state, and against the officers, employees, and servants of those entities.

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begin insert

This bill would establish an exception for an action for damages pursuant to the California Whistleblower Protection Act from the claims presentation requirements of the Government Claims Act.

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begin insert

Existing law prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a state or federal rule or regulation. Existing law prohibits any employer from retaliating against an employee for disclosing information to a government or law enforcement agency pursuant to these provisions or for refusing to participate in an activity that would result in a violation of a state or federal statute or noncompliance with a state or federal rule or regulation. Under existing law, an employer who violates these provisions is guilty of a crime.

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begin insert

This bill would expand these provisions to prohibit an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of or noncompliance with a local rule or regulation. The bill would prohibit an employer from retaliating against an employee because the employer perceives that the employee may disclose information to a government or law enforcement agency, or to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The bill would also prohibit an employer from retaliating against an employee for disclosing, or refusing to participate in an activity that would result in, a violation of or noncompliance with a local rule or regulation.

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begin insert

Because this bill would change the definition of a crime, this bill would impose a state-mandated local program.

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begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert
begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

The people of the State of California do enact as follows:

P4    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 905 of the end insertbegin insertGovernment Codeend insertbegin insert is amended
2to read:end insert

3

905.  

There shall be presented in accordance with Chapter 1
4(commencing with Section 900) and Chapter 2 (commencing with
5Section 910) all claims for money or damages against local public
6entities except any of the following:

7(a) Claims under the Revenue and Taxation Code or other statute
8prescribing procedures for the refund, rebate, exemption,
9cancellation, amendment, modification, or adjustment of any tax,
10assessment, fee, or charge or any portion thereof, or of any
11penalties, costs, or charges related thereto.

12(b) Claims in connection with which the filing of a notice of
13lien, statement of claim, or stop notice is required under any law
14relating to liens of mechanics, laborers, or materialmen.

15(c) Claims by public employees for fees, salaries, wages,
16mileage, or other expenses and allowances.

17(d) Claims for which the workers’ compensation authorized by
18Division 4 (commencing with Section 3200) of the Labor Code is
19the exclusive remedy.

20(e) Applications or claims for any form of public assistance
21under the Welfare and Institutions Code or other provisions of law
22relating to public assistance programs, and claims for goods,
23services, provisions, or other assistance rendered for or on behalf
24of any recipient of any form of public assistance.

25(f) Applications or claims for money or benefits under any public
26retirement or pension system.

27(g) Claims for principal or interest upon any bonds, notes,
28warrants, or other evidences of indebtedness.

29(h) Claims that relate to a special assessment constituting a
30specific lien against the property assessed and that are payable
31from the proceeds of the assessment, by offset of a claim for
32damages against it or by delivery of any warrant or bonds
33representing it.

34(i) Claims by the state or by a state department or agency or by
35another local public entity or by a judicial branch entity.

36(j) Claims arising under any provision of the Unemployment
37Insurance Code, including, but not limited to, claims for money
38or benefits, or for refunds or credits of employer or worker
P5    1contributions, penalties, or interest, or for refunds to workers of
2deductions from wages in excess of the amount prescribed.

3(k) Claims for the recovery of penalties or forfeitures made
4pursuant to Article 1 (commencing with Section 1720) of Chapter
51 of Part 7 of Division 2 of the Labor Code.

6(l) Claims governed by the Pedestrian Mall Law of 1960 (Part
71 (commencing with Section 11000) of Division 13 of the Streets
8and Highways Code).

9(m) Claims made pursuant to Section 340.1 of the Code of Civil
10Procedure for the recovery of damages suffered as a result of
11childhood sexual abuse. This subdivision shall apply only to claims
12arising out of conduct occurring on or after January 1, 2009.

13(n) Claims made pursuant to Section 701.820 of the Code of
14Civil Procedure for the recovery of money pursuant to Section
1526680.

16(o) Claims made pursuant to Section 49013 of the Education
17Code for reimbursement of pupil fees for participation in
18educational activities.

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19(p) Claims made for a violation of Article 3 (commencing with
20Section 8547) of Chapter 6.5 of Division 1 of Title 2.

end insert
21begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 8547.15 is added to the end insertbegin insertGovernment Codeend insertbegin insert, to
22read:end insert

begin insert
23

begin insert8547.15.end insert  

An action for damages pursuant to this article shall
24not be subject to the claims presentation requirements of the
25Government Claims Act (Division 3.6 (commencing with Section
26810) of Title 1).

end insert
27

begin deleteSECTION 1.end delete
28begin insertSEC. 3.end insert  

Section 19683 of the Government Code is amended
29to read:

30

19683.  

(a) The State Personnel Board shall initiatebegin delete a
31preliminaryend delete
begin insert an informalend insert hearing or investigation of a written
32complaint of reprisal or retaliation as prohibited by Section 8547.3
33within 10 working days of its submission. The executive officer
34shall complete findings of thebegin delete preliminaryend deletebegin insert informalend insert hearing or
35investigation within 60 working days thereafter, and shall provide
36a copy of the findings to the complaining state employee or
37applicant for state employment and to the appropriate supervisor,
38manager, employee, or appointing authority.

39(b) The complainant is deemed to have exhausted his or her
40administrative remedies and may file an independent action for
P6    1civil damages, pursuant to Section 8547.8,begin insert afterend insert 70 working days
2begin delete afterend deletebegin insert fromend insert submitting the complaint to the State Personnel Board,
3or sooner upon either of the following:

4(1) The executive officer issues the findings of thebegin delete preliminaryend delete
5begin insert informal end insert hearing or investigation, as set forth in subdivision (a).

6(2) The executive officer consolidates the complainant’s multiple
7appeals pursuant to subdivision (e) and refers the consolidated
8appeal directly to an evidentiary hearing.

9(c) If, after thebegin delete preliminaryend deletebegin insert informalend insert hearing, the executive
10officer finds that the supervisor, manager, employee, or appointing
11power retaliated against the complainant for engaging in protected
12whistleblower activities, the supervisor, manager, employee, or
13appointing power may request an evidentiary hearing before the
14State Personnel Board regarding the findings of the executive
15officer. A complainant’s filing of a civil action does not preclude
16the request for an evidentiary hearing by the supervisor, manager,
17employee, or appointing power under this subdivision, nor does
18the request for hearing preclude the complainant’s right to file an
19independent civil action pursuant to subdivision (b). The request
20for hearing and any subsequent determination by the board shall
21be made in accordance with the board’s normal rules governing
22appeals, hearings, investigations, and disciplinary proceedings.

23(d) The executive officer’s findings of thebegin delete preliminaryend deletebegin insert informalend insert
24 hearing or investigation, as set forth in subdivision (a), are not
25binding in a subsequent State Personnel Board evidentiary hearing
26requested by the complainant or pursuant to subdivision (c) or (e),
27nor in a civil action for damages, pursuant to subdivision (b).

28(e) If the allegations contained in a complaint of reprisal or
29retaliation are the same as, or similar to, those contained in another
30appeal to the State Personnel Board by the complainant as
31authorized by another law or under a separate cause of action, the
32executive officer may consolidate the appeals into the most
33appropriate format. In these cases, the time limits described in
34subdivision (a) shall not apply.

35(f) After an evidentiary hearing requested by the complainant
36or pursuant to subdivision (c) or (e) the State Personnel Board
37shall issue a decision. Any aggrieved party to the decision may
38file a petition for writ of mandate with the superior court for review
39of the decision pursuant to Section 1094.5 of the Code of Civil
40Procedure. This subdivision shall not apply to a claimant’s right
P7    1to pursue an independent action for civil damages pursuant to
2subdivision (b).begin insert A decision by the State Personnel Board shall not
3be binding in any concurrent or subsequent independent civil
4action pursuant to subdivision (b).end insert

5(g) If, after the evidentiary hearing, the State Personnel Board
6determines that a violation of Section 8547.3 occurred, or if no
7evidentiary hearing is requested and the findings of the executive
8officer conclude that the complainant was retaliated against, the
9board may order any appropriate relief, including, but not limited
10to, reinstatement, backpay, restoration of lost service credit,
11compensatory damages, and the expungement of any adverse
12records of the state employee or applicant for state employment
13who was the subject of the alleged acts of misconduct prohibited
14by Section 8547.3.

15(h) Whenever the board determines that a manager, supervisor,
16or employee, who is named a party to the retaliation complaint,
17has violated Section 8547.3 and that violation constitutes legal
18cause for discipline under one or more subdivisions of Section
1919572, it shall impose a just and proper penalty and cause an entry
20to that effect to be made in the manager’s, supervisor’s, or
21employee’s official personnel records.

22(i) Whenever the board determines that a manager, supervisor,
23or employee, who is not named a party to the retaliation complaint,
24may have engaged in or participated in any act prohibited by
25Section 8547.3, the board shall notify the manager’s, supervisor’s,
26or employee’s appointing power of that fact in writing. Within 60
27days after receiving the notification, the appointing power shall
28either serve a notice of adverse action on the manager, supervisor,
29or employee, or set forth in writing its reasons for not taking
30adverse action against the manager, supervisor, or employee. The
31appointing power shall file a copy of the notice of adverse action
32with the board in accordance with Section 19574. If the appointing
33power declines to take adverse action against the manager,
34supervisor, or employee, it shall submit its written reasons for not
35doing so to the board, which may take adverse action against the
36manager, supervisor, or employee as provided in Section 19583.5.
37A manager, supervisor, or employee who is served with a notice
38of adverse action pursuant to this section may file an appeal with
39 the board in accordance with Section 19575.

P8    1(j) In order for the Governor and the Legislature to determine
2the need to continue or modify state personnel procedures as they
3relate to the investigations of reprisals or retaliation for the
4disclosure of information by public employees, the State Personnel
5Board, by June 30 of each year, shall submit a report to the
6Governor and the Legislature regarding complaints filed, hearings
7held, and legal actions taken pursuant to this section.

8begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 1102.5 of the end insertbegin insertLabor Codeend insertbegin insert is amended to read:end insert

9

1102.5.  

(a) An employerbegin delete mayend deletebegin insert shallend insert not make, adopt, or enforce
10any rule, regulation, or policy preventing an employee from
11disclosing information to a government or law enforcement agency,
12begin delete whereend deletebegin insert ifend insert the employee has reasonable cause to believe that the
13information discloses a violation of state or federal statute, or a
14violationbegin insert ofend insert or noncompliance with abegin delete stateend deletebegin insert local, state,end insert or federal
15rule or regulation.

16(b) An employerbegin delete mayend deletebegin insert shallend insert not retaliate against an employee
17for disclosingbegin delete informationend deletebegin insert information, or because the employer
18perceives that the employee may disclose information,end insert
to a
19government or law enforcement agency,begin delete whereend deletebegin insert or to a person with
20authority overend insert
the employeebegin insert or another employee whoend insert hasbegin insert the
21authority to investigate, discover, or correct the violation, if the
22employee hasend insert
reasonable cause to believe that the information
23discloses a violation of state or federal statute, or a violationbegin insert ofend insert or
24noncompliance with abegin delete stateend deletebegin insert local, state,end insert or federal rule or
25regulation.

26(c) An employerbegin delete mayend deletebegin insert shallend insert not retaliate against an employee
27for refusing to participate in an activity that would result in a
28violation of state or federal statute, or a violationbegin insert ofend insert or
29noncompliance with abegin delete stateend deletebegin insert local, state,end insert or federal rule or
30regulation.

31(d) An employerbegin delete mayend deletebegin insert shallend insert not retaliate against an employee
32for having exercised his or her rights under subdivision (a), (b),
33or (c) in any former employment.

34(e) A report made by an employee of a government agency to
35his or her employer is a disclosure of information to a government
36or law enforcement agency pursuant to subdivisions (a) and (b).

37(f) In addition to other penalties, an employer that is a
38corporation or limited liability company is liable for a civil penalty
39not exceeding ten thousand dollars ($10,000) for each violation
40of this section.

P9    1(g) This section does not apply to rules, regulations, or policies
2begin delete whichend deletebegin insert thatend insert implement, or to actions by employers against
3employees who violate, the confidentiality of the lawyer-client
4privilege of Article 3 (commencing with Section 950), the
5physician-patient privilege of Article 6 (commencing with Section
6990) of Chapter 4 of Division 8 of the Evidence Code, or trade
7secret information.

8begin insert

begin insertSEC. 5.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
9Section 6 of Article XIII B of the California Constitution because
10the only costs that may be incurred by a local agency or school
11district will be incurred because this act creates a new crime or
12infraction, eliminates a crime or infraction, or changes the penalty
13for a crime or infraction, within the meaning of Section 17556 of
14the Government Code, or changes the definition of a crime within
15the meaning of Section 6 of Article XIII B of the California
16Constitution.

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